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LINCOLN  ROOM 

UNIVERSITY  OF  ILLINOIS 
LIBRARY 


MEMORIAL 

the  Class  of  1901 

founded  by 

HARLAN  HOYT  HORNER 

and 
HENRIETTA  CALHOUN  HORNER 


ON   THE 


CONSTITUTIONAL  POWER  OF  THE  MILITARY 


TO 


TRY   AND   EXECUTE 


THE 


ASSASSINS  OF  THE  PRESIDENT 


BY  ATTORNEY  GENERAL  JAMES  SPEED. 


WASHINGTON: 

GOVERNMENT    PRINTING    OFFICE. 

1865. 


OPINION. 


ATTORNEY  GENERAL'S  OFFICE, 

Washington,  July  — ,  1865. 

SIR  :  You  ask  me  whether  the  persons  charged  with  the  offence  of  having 
assassinated  the  President  can  be  tried  before  a  military  tribunal,  or  must 
they  be  tried  before  a  civil  court. 

The  President  was  assassinated  at  a  theatre  in  the  city  of  Washington. 
At  the  time  of  the  assassination  a  civil  war  was  flagrant,  the  city  of  Wash- 
ington was  defended  by  fortifications  regularly  and  constantly  manned, 
the  principal  police  of  the  city  was  by  federal  soldiers,  the  public  offices 
and  property  in  the  city  were  all  guarded  by  soldiers,  and  the  President's 
House  and  person  were  or  should  have  been  under  the  guard  of  soldiers. 
Martial  law  had  been  declared  in  the  District  of  Columbia,  but  the  civil 
courts  were  open  and  held  their  regular  sessions,  and  transacted  business 
as  in  times  of  peace. 

Such  being  the  facts,  the  question  is  one  of  great  importance  — impor- 
tant, because  it  involves  the  constitutional  guarantees  thrown  about  the 
rights  of  the  citizen,  and  because  the  security  of  the  army  and  the  govern- 
ment in  time  of  war  is  involved ;  important,  as  it  involves  a  seeming  con- 
flict betwixt  the  laws  of  peace  and  of  war. 

Having  given  the  question  propounded  the  patient  and  earnest  considera- 
tion its  magnitude  and  importance  require,  I  will  proceed  to  give  the  rea- 
sons why  I  am  of  the  opinion  that  the  conspirators  not  only  may  but 
ought  to  be  tried  by  a  military  tribunal. 

A  civil  court  of  the  United  States  is  created  by  a -law  of  Congress  un- 
der and  according  to  the  Constitution.  To  the  Constitution  and  the  law 
we  must  look  to  ascertain  how  the  court  is  constituted,  the  limits  of  its 
jurisdiction,  and  what  its  mode  of  procedure. 

A  military  tribunal  exists  under  and  according  to  the  Constitution  in 
time  of  war.  Congress  may  prescribe  how  all  such  tribunals  are  to  be 
constituted,  what  shall  be  their  jurisdiction  and  mode  of  procedure. 
Should  Congress  fail  to  create  such  tribunals,  then,  under  the  Constitution, 
they  must  be  constituted  according  to  the  laws  and  usages  of  civilized  war- 
fare. They  may  take  cognizance  of  such  offences  ;is  the  laws  of  war 
permit;  they  must  proceed  according  to  the  customary  usages  of  such  tri- 
bunals in  time  of  war,  and  inflict  such  punishments  as  are  sanctioned  by 
the  practice  of  civilized  nations  in  time  of  war.  In  time  of  peace  neither 
Congress  nor  the  military  can  create  any  military  tribunals,  except  such  as 
are  made  in  pursuance  of  that  clause  of  the  Constitution  which  gives  to 
Congress  the  power  "  to  make  rules  for  the  government  of  the  land  and 


naval  forces."  I  do  not  think  that  Congress  can,  in  time  of  war  or  peace, 
under  this  clause  of  the  Constitution,  create  military  tribunals  for  the 
adjudication  of  offences  committed  by  persons  not  engaged  in,  or  belonging 
to,  such  forces.  This  is  a  proposition  too  plain  for  argument.  But  it  does 
not  follow  that  because  such  military  tribunals  cannot  be  created  by  Con- 
gress under  this  clause,  that  they  cannot  be  created  at  all.  Is  there  no 
other  power  conferred  by  the  Constitution  upon  Congress  or  the  military 
under  which  such  tribunals  may  be  created  in  time  of  war? 

That  the  law  of  nations  constitutes  a  part  of  the  laws  of  the  land,  must 
be  admitted.  The  laws  of  nations  are  expressly  made  laws  of  the  land  by 
the  Constitution,  when  it  says  that  "  Congress  shall  have  power  to  define 
and  punish  piracies  and  felonies  committed  on  the  high  seas  and  offences 
against  the  laws  of  nations."  To  define  is  to  give  the  limits  or  precise 
meaning  of  a  word  or  thing  in  being  ;  to  make,  is  to  call  into  being.  Con- 
gress has  power  to  define,  not  to  make,  the  laws  of  nations ;  but  Congress 
has  the  power  to  make  rules  for  the  government  of  the  army  and  navy. 
From  the  very  face  of  the  Constitution,  then,  it  is  evident  that  the  laws  of 
nations  do  constitute  a  part  of  the  laws  of  the  land.  But  very  soon  after 
the  organization  of  the  federal  government,  Mr.  Randolph,  then  Attorney 
General,  said  :  "  The  law  of  nations,  although  not  specifically  adopted  by 
the  Constitution,  is  essentially  a  part  of  the  law  of  the  land.  Its  obligation 
commences  and  runs  with  the  existence  of  a  nation,  subject  to  modification 
on  some  points  of  indifference."  (See  opinion  Attorney  General,  vol.  1, 
page  27.)  The  framers  of  the  Constitution  knew  that  a  nation  could  not 
maintain  an  honorable  place  amongst  the  nations  of  the  world  that  does 
not  regard  the  great  and  essential  principles  of  the  law  of  nations  as  a  part 
of  the  law  of  the  land.  Hence  Congress  may  define  those  laws,  but  cannot 
abrogate  them,  or,  as  Mr.  Randolph  says,  may  "  modify  on  some  points  of 
indifference." 

That  the  laws  of  nations  constitute  a  part  of  the  laws  of  the  land  is 
established  from  the  face  of  the  Constitution,  upon  principle  and  by 
authority. 

But  the  laws  of  war  constitute  much  the  greater  part  of  the  law  of  na- 
tions. Like  the  other  laws  of  nations/  they  exist  and  are  of  binding  force 
upon  the  departments  and  citizens  of  the  government,  though  not  defined 
by  any  law  of  Congress.  No  one  that  has  ever  glanced  at  the  many  trea- 
tises that  have  been  published  in  different  ages  of  the  world  by  great, 
good,  and  learned  men,  can  fail  to  know  that  the.  laws  of  war  constitute  a 
part  of  the  law  of  nations,  and  that  those  laws  have  been  prescribed  with 
tolerable  accuracy. 

Congress  can  declare  war.  When  war  is  declared,  it  must  be,  under 
the  Constitution,  carried  on  according  to  the  known  laws  and  usages  of 
war  amongst  civilized  nations.  Under  the  power  to  define  those  laws, 


o 

Congress  cannot  abrogate  them  or  authorize  their  infraction.  The  Consti- 
tution does  not  permit  this  government  to  prosecute  a  war  as  an  uncivil- 
ized and  barbarous  people.  • 

As  war  'is  required  by  the  frame- work  of  our  government  t<;  be  prose- 
cuted according  to  the  known  usages  of  war  amongst  the  civilized  nations 
of  the  earth,  it  is  important  to  understand  what  are  the  obligations,  duties, 
and  responsibilities  imposed  by  war  upon  the  military.  Congress,  not  having 
defined,  as  under  the  Constitution  it  might  have  done,  the  laws  of  war,  we 
must  look  to  the  usage  of  nations  to  ascertain  the  powers  conferred  in  war, 
on  whom  the  exercise  of  such  powers  devolve,  over  whom,  and  to  what 
extent  do  those  powers  reach,  and  in  how  far  the  citizen  and  the  soldier 
are  bound  by  the  legitimate  use  thereof. 

The  power  conferred  by  war  is,  of  course,  adequate  to  the  end  to  be 
accomplished,  and  not  greater  than  what  is  necessary  to  be  accomplished. 
The  law  of  war,  like  every  other  code  of  laws,  declares  what  shall  not  be 
done,  and  does  not  say  what  may  be  done.  The  legitimate  use  of  the 
great  power  of  war,  or  rather  the  prohibitions  upon  the  use  of  that  power, 
increase  or  diminish  as  the  necessity  of  the  case  demands.  When  a  city 
is  besieged  and  hard  pressed,  the  commander  may  exert  an  authority  over 
the  non-combatants  which  he  may  not  when  no  enemy  is  near. 

All  wars  against  a  domestic  enemy  or  to  repel  invasions  are  prosecuted 
to  preserve  the  government.  If  the  invading  force  can  be  overcome  by 
the  ordinary  civil  police  of  a  country,  it  should  be  done  without  bringing 
upon  the  country  the  terrible  scourge  of  war;  if  a  commotion  or  insurrec- 
tion can  be  put  d..wu  by  the  ordinary  process  of  law,  the  military  should 
not  be  called  out.  A  defensive  foreign  war  is  declared  and  carried  on  be- 
cause the  civil  police  is  inadequate  to  repel  it;  a  civil  war  is  waged  because 
the  laws  cannot  be  peacefully  enforced  by  the  ordinary  tribunals  of  the 
country  through  civil  process  and  by  civil  officers.  Because  of  the  utter 
inability  to  keep  the  peace  and  maintain  order  by  the  customary  officers 
and  agencies  in  time  of  peace,  armies  are  organized  and  put  into  the  field. 
They  are  called  out  and  invested  with  the  powers  of  war  to  prevent  total 
anarchy  and  to  preserve  the  government.  Peace  is  the  normal  condition 
of  a  country,  and  war  abnormal,  neither  being  without  law,  but  each  hav- 
ing laws  appropriate  to  the  condition  of  society.  The  maxim  inter  arma 
silent  leges  is  never  wholly  true.  The  object  of  war  is  to  bring  society  out 
of  its  abnormal  condition;  and  the  laws  of  war  aim  to  have  that  done  with 
the  least  possible  injury  to  persons  or  property. 

Anciently,  when  two  nations  were  at  war,  the  conqueror  had  or  asserted 
the  right  to  take  from  his  enemy  his  lit\-,  liberty,  and  property :  if  either 
was  spared,  it  was  as  a  favor  or  act  of  mercy.  By  the  laws  of  nations,  and. 
of  war  as  a  part  thereof,  the  conqueror  was  deprived  of  this  right. 

When  two  governments,  foreign  to  each  other,  are  at  war,  or  when  a  civil 
war  becomes  territorial,  all  of  the  people  of  the  respective  belligerents  become 


6 

by  the  law  of  nations  the  enemies  of  each  other.  As  enemies  they  cannot  hold 
intercourse,  but  neither  can  kill  or  injure  the  other  except  under  a  commis- 
sion from  their  respective  governments.  So  humanizing  have  been  and  are 
the  laws  of  war,  that  it  is  a  high  offence  against  them  to  kill  an  enemy 
without  such  commission.  The  laws  of  Avar  demand  that  a  man  shall  not 
take  human  life  except  under  a  license  from  his  government ;  and  under  the 
Constitution  of  the  United  States  no  license  can  be  given  by  any  depart- 
ment of  the  government  to  take  human  life  in  war,  except  according  to  the 
law  and  usages  of  war.  Soldiers  regularly  in  the  service  have  the  license 
of  the  government  to  deprive  men,  the  active  enemies  of  their  government, 
of  their  liberty  and  lives  ;  their  commission  so  to  act  is  as  perfect  and  legal 
as  that  of  a  judge  to  adjudicate,  but  the  soldier  must  act  in  obedience  to  the 
laws  of  war,  as  the  judge  must  in  obedience  to  the  civil  law.  A  civil  judge 
must  try  criminals  in  the  mode  prescribed  in  the  Constitution  and  the  law; 
so,  soldiers  must  kill  or  capture  according  to  the  laws  of  war.  Non-com- 
batants are  not  to  be  disturbed  or  interfered  Avitli  by  the  armies  of  either 
party  except  in  extreme  cases.  Armies  are  called  out  and  organized  to 
meet  and  overcome  the  active,  acting  public  enemies. 

But  enemies  with  which  an  army  has  to  deal  are  of  two  classes  : 
1st.  Open,  active  participants  in  hostilities,  as  soldiers  who  wear  the 
uniform,  move  under  the  flag,  and  hold  the  appropriate  commission  from 
their  government.  Openly  assuming  to  discharge  the  duties  and  meet  the 
responsibilities  and  dangers  of  soldiers,  they  are  entitled  to  all  belligerent 
rights,  and  should  receive  all  the  courtesies  due  to  soldiers.  The  true  sol- 
dier is  proud  to  acknowledge  and  respect  those  rights,  and  ever  cheerfully 
extends  those  courtesies. 

2d.  Secret,  but  active  participants,  as  spies,  brigands,  bushwhackers,  jay- 
hawkers,  war  rebels,  and  assassins.  In  all  Avars,  and  especially  in  civil 
wars,  such  secret,  active  enemies  rise  up  to  annoy  and  attack  an  army,  and 
they  must  be  met  and  put  down  by  the  army.  When  lawless  Avretches 
become  so  impudent  and  po\verful  as  not  to  be  controlled  and  governed 
by  the  ordinary  tribunals  of  a  country,  armies  are  called  out,  and  the  laAvs 
of  Avar  invoked.  Wars  never  have  been  and  neArer  can  be  conducted  upon 
the  principle  that  an  army  is  but  a,  2}OSSC  comitatis  of  a  civil  magistrate. 

An  army,  like  all  other  organized  bodies,  has  a  right,  and  it  is  its  first 
duty,  to  protect  its  own  existence,  and  the  existence  of  all  its  parts,  by 
the  means  and  in  the  mode  usual  among  civilized  nations  when  at  Avar. 
Then  the  question  arises,  do  the  laws  of  war  authorize  a  different  mode  of 
proceeding  and  the  use  of  different  means  against  secret  actiA'e  enemies 
from  those  used  against  open  active  enemies  ? 

As  has  been  said,  the  open  enemy  or  soldier  in  time  of  Avar  may  be  met 
in  battle  and  killed,  wounded,  or  taken  prisoner,  or  so  placed  by  the  lawful 
strategy  of  Avar  as  that  he  is  powerless.  Unless  the  laAv  of  self-preserAra- 
tion  absolutely  demands  it,  the  life  of  a  Avouudcd  enemy  or  a  prisoner  must 


be  spared.  Unless  pressed  thereto  by  the  extremest  necessity,  the  laws  of 
war  condemn  and  punish  with  great  severity  harsh  or  cruel  treatment  to 
a  wounded  enerny  or  a  prisoner. 

Certain  stipulations  and  agreements,  tacit  or  express,  betwixt  the  open 
belligerent  parties,  are  permitted  by  the  laws  of  war,  and  are  held  to  be  of 
very  high  and  sacred  character.  Such  is  the  tacit  understanding,  or  it 
may  be  usage,  of  war,  in  regard  to  flags  of  truce.  Flags  of  truce  are  re- 
sorted to  as  a  means  of  saving  human  life,  or  alleviating  human  suffering. 
When  not  used  Avith  perfidy,  the  laws  of  war  require  that  they  should  be 
respected.  The  Romans  regarded  ambassadors  betwixt  belligerents  as 
persons  to  be  treated  with  consideration  and  respect.  Plutarch,  in  his  Life 
of  Caesar,  tells  us  that  the  barbarians  in  Gaul  having  sent  some  ambassa- 
dors to  Caesar,  he  detained  them,  charging  fraudulent  practices,  and  led  his 
army  to  battle,  obtaining  a  great  victory. 

When  the  senate  decreed  festivals  and  sacrifices  for  the  victory,  Cato 
declared  it  to  be  his  opinion  that  Caesar  ought  to  be  given  into  the  hands 
of  the  barbarians,  that  so  the  guilt  which  this  breach  of  faith  might  other- 
wise bring  upon  the  state  might  be  expiated  by  transferring  the  curse  on 
him  who  was  the  occasion  of  it. 

Under  the  Constitution  and  laws  of  the  United  States,  should  a  com- 
mander be  guilty  of  such  a  flagrant  breach  of  law  as  Cato  charged  upon 
Caesar,  he  would  not  be  delivered  to  the  enemy,  but  would  be  punished 
after  a  military  trial.  The  many  honorable  gentlemen  who  hold  commis- 
sions in  the  army  of  the  United  States,  and  have  been  deputed  to  conduct 
war  according  to  the  laws  of  war,  would  keenly  feel  it  as  an  insult  to  their 
profession  of  arms  for  any  one  to  say  that  they  could  not  or  would  not 
punish  a  fellow-soldier  who  was  guilty  of  wanton  cruelty  to  a  prisoner,  or 
perfidy  towards  the  bearers  of  a  flag  of  truce. 

The  laws  of  war  permit  capitulations  of  surrender  and  paroles.  They 
are  agreements  betwixt  belligerents,  and  should  be  scrupulously  observed 
and  performed.  They  are  contracts  wholly  unknown  to  civil  tribunals. 
Parties  to  such  contracts  must  answer  any  breaches  thereof  to  the  customary 
military  tribunals  in  time  of  war.  If  an  officer  of  rank,  possessing  the 
pride  that  becomes  a  soldier  and  a  gentleman,  who  should  capitulate  to  sur- 
render the  forces  and  property  under  his  command  and  control,  be  charged 
with  a  fraudulent  breach  of  the  terms  of  surrender,  the  laws  of  war  do  not 
permit  that  he  should  be  punished  without  a  trial,  or,  if  innocent,  that  he 
shall  have  no  means  of  wiping  out  the  foul  imputation.  If  a  paroled  pris- 
oner is  charged  with  a  breach  of  his  parole,  he  may  be  punished  if  guilty, 
but  not  without  a  trial.  He  should  be  tried  by  a  military  tribunal  consti- 
tuted and  proceeding  as  the  laws  and  usages  of  war  prescribe. 

The  law  and  usage  of  war  contemplate  that  soldiers  have  a  high  sense 
of  personal  honor.  The  true  soldier  is  proud  to  feel  and  to  know  that  his 
enemy  possesses  personal  honor,  and  will  conform  and  be  obedient  to  the 


8 

laws  of  war.  In  a  spirit  of  justice,  and  with  a  wise  appreciation  of  such 
feelings,  the  laws  of  war  protect  the  character  and  honor  of  an  open 
enemy.  When  by  the  fortunes  of  war  one  open  enemy  is  thrown  into  the 
hands  and  power  of  another,  and  is  charged  with  dishonorable  conduct 
and  a  breach  of  the  laws  of  war,  he  must  be  tried  according  to  the  usages 
of  war.  Justice  and  fairness  say  that  an  open  enemy  to  whom  dis- 
honorable conduct  is  imputed,  has  a  right  to  demand  a  trial.  If  such  a 
demand  can  be  rightfully  made,  surely  it  cannot  be  rightfully  refused. 
It  is  to  be  hoped  that  the  military  authorities  of  this  country  will  never 
refuse  such  a  demand,  because  there  is  no  act  of  Congress  that  authorizes 
it.  In  time  of  war  the  law  and  usage  of  war  authorize  it,  and  they  are  a 
part  of  the  law  of  the  land. 

One  belligerent  may  request  the  other  to  punish  for  breaches  of  the 
laws  of  war,  and,  regularly,  such  a  request  should  be  made  before  retalia- 
tory measures  are  taken.  Whether  the  laws  of  war  have  been  infringed 
^or  not,  is  of  necessity  a  question  to  be  decided  by  the  laws  and  usages  of 
war,  and  is  cognizable  before  a  military  tribunal.  When  prisoners  of  war 
conspire  to  escape  or  are  guilty  of  a  breach  of  appropriate  and  necessary 
rules  of  prison  discipline,  they  may  be  punished,  but  not  without  trial. 
The  commander  who  should  order  every  prisoner  charged  with  improper 
conduct  to  be  shot  or  hung,  would  be  guilty  of  a  high  offence  against  the 
laws  of  war,  and  should  be  punished  therefor,  after  a  regular  military 
trial.  If  the  culprit  should  be  condemned  and  executed,  the  commander 
would  be  as  free  from  guilt  as  if  the  man  had  been  killed  in  battle. 

It  is  manifest,  from  what  has  been  said,  that  military  tribunals  exist 
•under  and  according  to  the  laws  and  usages  of  war  in  the  interest  of  justice 
.and  mercy.  They  are  established  to  save  human  life,  and  to  prevent 
Cruelty  as  far  as  possible.  The  commander  of  an  army  in  time  of  Avar  has 
the  same  power  to  organize  military  tribunals  and  execute  their  judgments 
that  he  has  to  set  his  squadrons  in  the  field  and  fight  battles.  His 
authority  in  each  case  is  from  the  law  and  usage  of  war. 

Having  seen  that  there  must  be  military  tribunals  to  decide  questions 
arising  in  time  of  war  betwixt  belligerents  who  are  open  and  active  ene- 
mies, let  us  next  see  whether  the  laws  of  war  do  not  authorize  such 
tribunals  to  determine  the  fate  of  those  who  are  active,  but  secret,  partici- 
pants in  the  hostilities. 

In  Mr.  Whcaton's  Elements  of  International  Law,  he  says,  "the  effect 
-of  a  state  of  war,  lawfully  declared  to  exist,  is  to  place  all  the  subjects  of 
each  belligerent  power  in  a  state  of  mutual  hostility.  The  usage  of  na- 
tions has  modified  this  maxim  by  legalizing  such  acts  of  hostility  only  as 
are  committed  by  those  who  are  authorized  by  the  express  or  implied  com- 
mand of  the  state  ;  such  are  the  regularly  commissioned  naval  and  mili- 
tary forces  of  the  nation  and  all  others  called  out  in  its  defence,  or  spon- 
taneously defending  themselves,  in  case  of  necessity,  without  any  express 


9 

authority  for  that  purpose.  Cicero  tells  us  in  his  offices,  that  by  the  Ro- 
man feudal  law  no  person  could  lawfully  engage  in  battle  with  the  public 
enemy  without  being  regularly  enrolled,  and  taking  the  military  oath. 
This  was  a  regulation  sanctioned  both  by  policy  and  religion.  The  hor- 
rors of  war  would  indeed  be  greatly  aggravated,  if  every  individual  of  the 
belligerent  states  were  allowed  to  plunder  and  slay  indiscriminately  the 
enemy's  subjects  without  being  in  any  manner  accountable  for  his  conduct. 
Hence  it  is  that,  in  land  wars,  irregular  bands  of  marauders  are  liable  to 
be  treated  as  lawless  banditti,  not  entitled  to  the  protection  of  tlie  mitigated 
usages  of  war  as  practiced  by  civilized  nations.'"  (Wheaton's  Elements 
of  International  Law,  page  406,  3d  edition.) 

In  speaking  upon  the'  subject  of  banditti,  Patrick  Henry  said,  in  the 
Virginia  convention,  "the  honorable  gentleman  has  given  you  an  elaborate 
account  of  what  he  judges  tyannical  legislation,  and  an  ex  post  facto  law — 
(in  the  case  of  Josiah  Phillips ;)  he  has  misrepresented  the  facts.  That 
man  was  not  executed  by  a  tyrannical  stroke  of  power ;  nor  was  he  a  Soc- 
rates ;  he  was  a  fugitive  murderer,  and  an  outlaw ;  a  man  who  com- 
manded an  infamous  banditti,  and  at  a  time  when  the  war  was  at  the  most 
perilous  stage  he  committed  the  most  cruel  and  shocking  barbarities  ;  he 
was  an  enemy  to  the  human  name.  Those  who  declare  war  against  the 
human  race  may  be  struck  out  of  existence  as  soon  as  apprehended.  He 
was  not  executed  according  to  those  beautiful  legal  ceremonies  which  are 
pointed  out  by  the  laws  in  criminal  cases.  The  enormity  of  his  crimes 
did  not  entitle  him  to  it.  I  am  truly  a  friend  to  legal  forms  and  methods, 
but,  sir,  the  occasion  warranted  the  measure.  A  pirate,  an  outlaw,  or  a 
common  enemy  to  all  mankind,  may  be  put  to  death  at  any  time.  It  is  jus- 
fied  by  the  law  of  nature  and  nations"  (3d  volume  Elliott's  Debates  on 
Federal  Constitution,  page  140.) 

No  reader,  not  to  say  student,  of  the  law  of  nations,  can  doubt  but  that 
Mr.  "VVheaton  and  Mr.  Henry  have  fairly  stated  the  laws  of  war.  Let  it 
be  constantly  borne  in  mind  that  they  are  talking  of  the  law  in  a  state  of 
war.  These  banditti  that  spring  up  in  time  of  war  are  respecters  of  no 
law,  human  or  divine,  of  peace  or  of  war,  are  hostcs  humani  generis,  and 
may  be  hunted  clown  like  wolves.  Thoroughly  desperate  and  perfectly 
lawless,  no  man  can  be  required  to  peril  his  life  in  venturing  to  take  them 
prisoners — as  prisoners,  no  trust  can  be  reposed  in  them.  But  they  are 
occasionally  made  prisoners.  Being  prisoners,  what  is  to  be  done  with 
them  1  If  they  are  public  enemies,  assuming  and  exercising  the  right  to 
kill,  and  are  not  regularly  authorized  to  do  so,  they  must  be  apprehended 
and  dealt  with  by  the  military.  No  man  can  doubt  the  right  and  duty  of 
the  military  to  make  prisoners  of  them,  and  being  public  enemies,  it  is  the 
duty  of  the  military  to  punish  them  for  any  infraction  of  the  laws  of  war. 
But  the  military  cannot  ascertain  whether  they  are  guilty  or  not  without 
the  aid  of  a  military  tribunal. 


10 

In  all  wars,  and  especially  in  civil  wars,  secret  but  active  enemies  are 
almost  as  numerous  as  open  ones.  That  fact  has  contributed  to  make  civil 
wars  such  scourges  to  the  countries  in  which  they  rage.  In  nearly  all  for- 
eign Avars  the  contending  parties  speak  different  languages,  and  have  dif- 
ferent habits  and  manners ;  but  in  most  civil  wars  that  is  not  the  case; 
hence  there  is  a  security  in  participating  secretly  in  hostilities  that  in- 
duces many  to  thus  engage.  War  prosecuted  according  to  the  most  civ- 
ilized usage  is  horrible,  but  its  horrors  are  greatly  aggravated  by  the  im- 
memorial habits  of  plunder,  rape,  and  murder  practiced  by  secret,  but 
active  participants.  Certain  laws  and  usages  have  been  adopted  by  the 
civilized  world  in  wars  between  nations  that  are  not  of  kin  to  one  another, 
for  the  purpose  and  toT  the  effect  of  arresting  or  softening  many  of  the 
necessary  cruel  consequences  of  war.  How  strongly  bound  are  we,  then, 
in  the  midst  of  a  great  war,  where  brother  and  personal  friend  are  fighting 
against  brother  and  friend,  to  adopt  and  be  governed  by  those  laws  and 
usages. 

A  public  enemy  must  or  should  be  dealt  with  in  all  wars  by  the  same 
laws.  The  fact  that  they  are  public  enemies,  being  the  same,  they  should 
deal  with  each  other  according  to  those  laws  of  war  that  are  contemplated 
by  the  Constitution.  Whatever  rules  have  been  adopted  and  practiced 
by  the  civilized  nations  of  the  world  in  war  to  soften  its  harshness  and 
severity,  should  be  adopted  and  practiced  by  us  in  this  war.  That  the 
laws  of  war  authorized  commanders  to  create  and  establish  military  com- 
missions, courts,  or  'tribunals,  for  the  trial  of  offenders  against  the  laws 
of  war,  whether  they  be  active  or  secret  participants  in  the  hostilities, 
cannot  be  denied.  That  the  judgments  of  such  tribunals  may  have  been 
sometimes  harsh,  and  sometimes  even  tyrannical,  does  not  prove  that  they 
ought  not  to  exist,  nor  does  it  prove  that  they  are  not  constituted  in  the 
interest  of  justice  and  rnercy.  Considering  the  power  that  the  laws  of  war 
give  over  secret  participants  in  hostilities,  such  as  banditti,  guerillas,  spies, 
&c.,  the  position  of  a  commander  Avould  be  miserable  indeed  if  he  could 
not  call  to  his  aid  the  judgments  of  such  tribunals ;  he  would  become  a 
mere  butcher  of  men,  without  the  power  to  ascertain  justice,  and  there  can 
be  no  mercy  where  there  is  no  justice.  War  in  its  mildest  form  is  horrible  ; 
but  take  away  from  the  contending  armies  the  ability  and  right  to  orgai.ize 
what  is  now  known  as  a  Bureau  of  Military  Justice,  they  would  soon  become 
monster  savages,  unrestrained  by  any  and  all  ideas  of  law  and  justice. 
Surely  no  lover  of  mankind,  no  one  that  respects  law  and  order,  no  one 
that  has  the  instinct  of.  justice,  or  that  can  be  sof  tened  by  mercy, 
would,  in  time  of  war,  take  away  from  the  commanders  the  right  to  organize 
military  tribunals  of  justice,  and  especially  such  tribunals  for  the  pro- 
tection of  persons  charged  or  suspected  with  being  secret  foes  and  par- 
ticipants in  the  hostilities.  It  would  be  a  miracle  if  the  records  and 
history  of  this  war  do  not  show  occasional  cases  in  which  those  tiibu- 


11 

nals  Lave  erred;  but  they  will  show  many,  very  many  cases  in  which 
human  life  would  have  been  taken  but  for  the  interposition  and  judg- 
ments of  those  tribunals.  Every  student  of  the  laws  of  war  must 
acknowledge  that  such  tribunals  exert  a  kindly  and  benign  influence  in 
time  of  war.  Impartial  history  will  record  the  fact  that  the  Bureau  of 
Military  Justice,  regularly  organized  during  this  war,  has  saved  human 
life  and  prevented  human  suffering.  The  greatest  suffering,  patiently 
endured  by  our  soldiers,  and  the  hardest  battles  gallantly  fought  during, 
this  protracted  struggle,  are  not  more  creditable  to  the  American  character' 
than  the  establishment  of  this  bureau.  This  people  have  such  an  educated 
and  profound  respect  for  law  and  justice — such  a  love  of  mercy — that  they 
have,  in  the  midst  of  this  greatest  of  civil  wars,  systematized  and  brought 
into  regular  order  tribunals  that  before  this  war  existed  under  the  law  of 
war,  but  without  general  rule.  To  condemn  the  tribunals  that  have  been 
established  under  this  bureau  is  to  condemn  and  denounce  the  war  itself, 
or,  justifying  the  war,  to  insist  that  it  shall  be  prosecuted  according  to 
the  harshest  rules,  and  without  the  aid  of  the  laws,  usages,  and  customary 
agencies  for  mitigating  those  rules.  If  such  tribunals  had  not  existed  be- 
fore, under  the  laws  and  usages  of  war,  the  American  citizen  might  as 
proudly  point  to  their  establishment  as  to  our  inimitable  and  inestimable 
constitutions.  It  must  be  constantly  borne  in  mind  that  such  tribunals 
and  such  a  bureau  cannot  exist  except  in  time  of  war,  and  cannot  then 
take  cognizance  of  offenders  or  offences  where  the  civil  courts  are  open, 
except  offenders  and  offences  against  the  laws  of  war. 

But  it  is  insisted  by  some,  and  doubtless  with  honesty,  and  with  a  zeal 
commensurate  with  their  honesty,  that  such  military  tribunals  can  have 
no  constitutional  existence.  The  argument  against  their  constitutionality 
may  be  shortly,  and  I  think  fairly,  stated  thus : 

Congress  alone  can  establish  military  or  civil  judicial  tribunals.  As 
Congress  has  not  established  military  tribunals,  except  such  as  have  been 
created  under  the  articles  of  war,  and  which  articles  are  made  in  pursuance 
of  that  clause  in  the  Constitution  which  gives  to  Congress  the  power  to 
make  rules  for  the  government  of  the  army  and  navy,  any  other  tribunal  is 
and  must  be  plainly  unconstitutional,  and  all  its  acts  void. 

This  objection  thus  stated,  or  stated  in  any  other  way,  begs  the  question. 
It  assumes  that  Congress  alone  can  establish  military  judicial  tribunals. 
Is  that  assumption  true  ? 

We  have  seen  that  when  war  comes,  the  laws  and  usages  of  war  come 
also,  and  that  during  the  war  they  are  a  part  of  the  laws  of  the  land. 
Under  the  Constitution,  Congress  may  define  and  punish  offences  against 
those  laws,  but  in  default  of  Congress's  defining  those  laws  and  prescrib- 
ing a  punishment  for  their  infraction,  and  the  mode  of  proceeding  to  ascer- 
tain whether  an  offence  has  been  committed,  and  what  punishment  is  to  be 
inflicted,  the  army  must  be  governed  by  the  laws  and  usages  of  war  as  tin- 


12 

derstood  and  practiced  by  the  civilized  nations  of  the  world  It  has  been 
abundantly  shown  that  these  tribunals  are  constituted  by  the  army  in  the 
interest  of  justice  and  mercy,  and  for  the  purpose  and  to  the  effect  of  miti- 
gating the  horrors  of  war. 

But  it  may  be  insisted  that  though  the  laws  of  war,  being  a  part  of  the 
law  of  nations,  constitute  a  part  of  the  laws  of  the  land,  that  those  laws 
must  be  regarded  as  modified  so  far  and  whenever  they  come  in  direct 
conflict  with  plain  constitutional  provisions.  The  following  clauses  of  the 
Constitution  are  principally  relied  upon  to  show  the  conflict  betwixt  the 
laws  of  Avar  and  the  Constitution  : 

"  The  trial  of  fill  crimes,  except  in  cases  of  impeachment,  shall  be  by  the 
jury ;  and  such  trial  shall  be  held  in  the  State  where  the  said  crime  shall 
have  been  committed;  but  when  not  committed  within  any  State,  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  may  by  law  have  directed." 
(Art.  Ill  of  the  original  Constitution,  sec.  2.} 

"No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual 
service,  in  time  of  war  or  public  danger;  nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb,  nor  shall 
be  compelled,  in  any  criminal  case,  to  be  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use  without  just  compensatiu:;." — 
(Amendments  to  the  Constitution,  Art.  V.) 

"  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State  and  district  wherein 
the  crime  shall  have  been  committed,  which  district  shall  have  been  previ- 
ously ascertained  by  law,  and  be  informed  of  the  nature  and  cause  of  the 
accusation;  to  be  confronted  with  the  witnesses  against  him,  to. have  'com- 
pulsory process  for  obtaining  witnesses  in  his  favor  ;  and  to  have  the  assist- 
ance of  counsel  for  his  defence." — (Art.  VI  of  the  amendments  to  the  Con- 
stitution.) 

These  provisions  of  the  Constitution  are  intended  to  fling  around  the 
life,  liberty,  and  property  of  a  citizen  all  the  guarantees  of  a  jury  trial. 
These  constitutional  guarantees  cannot  be  estimated  too  highly,  or  pro- 
tected too  sacredly.  The  reader  of  history  knows  that  fur  many  weary 
ages  the  people  suffered  for  the  want  of  them  ;  it  would  not  only  be  stu- 
pidity, but  madness  in  us  not  to  preserve  them.  No  man  has  a  deeper 
conviction  of  their  value  or  a  more  sincere  desire  to  preserve  and  perpetuate 
them  than  I  have. 

Nevertheless,  these  exalted  and  sacred  provisions  of  the  Constitution 
must  not  be  read  alone  and  by  themselves,  but  must  be  read  and  taken  in 
connexion  with  other  provisions.  The  Constitution  was  framed  by  great 
men,  men  of  learning  and  large  experience,  and  it  is  a  wonderful  monu- 


13 

ment  of  their  wisdom.  Well  versed  in  the  history  of  the  world,  they 
knew  that  the  nation  for  which  they  were  forming  a  government  would, 
unless  all  history  was  false,  have  wars,  foreign  and  domestic.  Hence  the 
government  framed  by  them  is  clothed  with  the  power  to  make  and  carry 
on  war.  As  has*becn  shown,  when  war  comes,  the  laws  of  war  come 
with  it.  Infractions  of  the  laws  of  nations  are  not  denominated  crimes, 
but  offences.  Hence  the  expression  in  the  Constitution  that  "  Congress 
shall  have  power  to  define  and  punish  *  *  offences  against  the  law  of 
nations."  Many  of  the  offences  against  the  law  of  nations  for  which  a 
man  may,  by  the  laws  of  war,  lose  his  life,  his  liberty,  or  his  property, 
are  not  crimes.  It  is  an  offenco  against  the  law  of  nations  to  break  a 
lawful  blockade,  and  for  which  a  forfeiture  of  the  property  is  the  penalty, 
and  yet  the  running  a  blockade  has  never  been  regarded  a  crime  ;  to  hold 
communication  or  intercourse  with  the  enemy  is  a  high  offence  against  the 
laws  of  war,  and  for  which  those  laws  prescribe  punishment,  and  yet  it  is 
not  a  crime ;  to  act  as  spy  is  an  offence  against  the  laws  of  war,  and  the 
punishment  for  which  in  all  ages  has  been  death,  and  yet  it  is  not  a 
crime ;  to  violate  a  flag  of  truce  is  an  offence  against  the  laws  of  war,  and 
yet  not  a  crime  of  which  a  civil  court  \;an  take  cognizance ;  to  unite  with 
banditti,  jayhawkers,  guerillas,  or  any  other  unauthorized  marauders  is  a 
high  offence  agaifist  the  laws  of  war ;  the  offence  is  complete  when  the 
band  is  organized  or  joined.  The  atrocities  committed  by  such  a  band  do 
not  constitute  the  offence,  but  make  the  reasons,  and  sufficient  reasons 
they  are,  why  such  banditti  are  denounced  by  the  laws  of  war.  Some  of 
the  offences  against  the  laws  of  war  are  crimes,  and  some  not.  Because 
they  are  crimes  they  do  not  cease  to  be  offences  against  those  laws ;  nor 
because  they  are  not  crimes  or  misdemeanors  do  they  fail  to  be  offences 
against  the  laws  of  war.  Murder  is  a  crime,  and  the  murderer  as  such 
must  be  proceeded  against  in  the  form  and  manner  prescribed  in  the  Con- 
stitution ;  in  committing  the  murder  an  offence  may  also  have  been  com- 
mitted against  the  laws  of  war ;  for  that  offence  he  must  answer  to  the 
laws  of  war,  and  the  tribunals  legalized  by  that  law. 

There  is,  then,  an  apparent  but  no  real  conflict  in  the  constitutional  pro- 
visions. Offences  against  the  laws  of  war  must  be  dealt  with  and  punished 
under  the  Constitution  as  the  laws  of  war,  they  being  a  part  of  the  law  of 
nations  direct ;  crimes  must  be  dealt  with  and  punished  as  the  Constitution, 
and  laws  made  in  pursuance  thereof,  may  direct. 

Congress  has  not  undertaken  to  define  the  code  of  war  nor  to  punish 
offences  against  it.  In  the  case  of  a  spy,  Congress  has  undertaken  to  say 
who  shall  be  deemed  a  spy,  and  how  he  shall  be  punished.  But  every- 
lawyer  knows  that  a  spy  was  a  well  known  offender  under  the  laws  of  war,, 
and  that  under  and  according  to  those  laws  he  could  have  been  tried  and 
punished  without  an  act  of  Congress.  This  is  admitted  by  the  act  of  Con- 


14 

gress,  when  it  says  that  he  shall  suffer  death  "according  to  the  law  and 
usages  of  war."     The  act  is  simply  declaratory  of  the  law. 

That  portion  of  the  Constitution  which  declares  that  "  no  person  shall  be 
deprived  of  his  life,  liberty,  or  property  without  due  process  of  law,"  has 
such  direct  reference  to,  and  connexion  with,  trials  for  crime  or  criminal 
prosecutions  that  comment  upon  it  would  seem  to  be  unnecessary.  Trials  for 
offences  against  the  laws  of  war  are  not  embraced  or  intended  to  be  embraced 
in  those  provisions.  If  this  is  not  so,  then  every  man  that  kills  another  in 
battle  is  a  murderer,  for  he  deprived  a  "person  of  life  without  that  due 
process  of  law"  contemplated  by  this  provision;  every  man  who  holds 
another  as  a  prisoner  of  war  is  liable  for  false  imprisonment,  as  he  does  so 
without  that  due  process  of  law  contemplated  by  this  provision  ;  every  sol- 
dier that  marches  across  a  field  in  battle  array  is  liable  to  an  action  of  tres- 
pass, because  he  does  it  without  that  same  due  process.  The  argument  that 
flings  around  offenders  against  the  laws  of  war  these  guarantees  of  the 
Constitution  would  convict  all  the  soldiers  of  our  army  of  murder;  no  pris- 
oners could  be  taken  and  held ;  the  army  could  not  move.  The  absurd 
consequences  that  would  of  necessity  flow  from  such  an  argument  show 
that  it  cannot  be  the  true  construction — it  cannot  be  what  was  intended  by 
the  framers  of  the  instrument.  One  of  the  prime  motives  for  the  Union 
and  a  federal  government  was  to  confer  the  powers  of  war.  If  any  provis- 
ions of  the  Constitution  are  so  in  conflict  with  the  power  to  carry  on  war 
as  to  destroy  and  make  it  valueless,  then  the  instrument,  instead  of  being  a 
great  and  wise  one,  is  a  miserable  failure,  a  fclo  dc  sc. 

If  a  man  should  sue  out  his  writ  of  habeas  corpus,  and  the  return  shows 
that  he  belonged  to  the  army  or  navy,  and  was  held  to  be  tried  for  some 
offence  against  the  rules  and  articles  of  war,  the  writ  should  be  dismissed 
and  the  party  remanded  to  answer  to  the  charges.  So,  in  time  of  war,  if  if 
man  should  sue  out  a  writ  of  habeas  corpus,  and  it  is  made  appear  that  he 
is  in  the  hands  of  the  military  as  a  prisoner  of  war,  the  writ  should  be  dis- 
missed and  the  prisoner  remanded  to  be  disposed  of  as  the  laws  and  usages 
of  war  require.  If  the  prisoner  be  a  regular  unoffending  soldier  of  the  op- 
posing party  to  the  war,  he  should  be  treated  with  all  the  courtesy  and 
kindness  consistent  with  his  safe  custody  ;  if  he  has  offended  against  the 
laws  of  war,  he  should  have  such  trial  and  be  punished  as  the  laws  of  war 
require.  A  spy,  though  a  prisoner  of  war,  may  be  tried,  condemned,  and 
executed  by  a  military  tribunal  without  a  breach  of  the  Constitution.  A 
bushwhacker,  a  jayhawker,  a  bandit,  a  war  rebel,  an  assassin,  being  public 
enemies,  may  be  tried,  condemned,  and  executed  as  offenders  against  the 
laws  of  war.  The  soldier  that  would  fail  to  try  a  spy  or  bandit  after 
his  capture  would  be  as  derelict  in  duty  as  if  he  were  to  fail  to  capture ; 
he  is  as  much  bound  to  try  and  to  execute,  if  guilty,  as  he  is  to  arrest ;  the 
same  law  that  makes  it  his  duty  to  pursue  and  kill  or  capture  makes  it  his 
duty  to  try  according  to  the  usages  of  war.  The  judge  of  a  civil  court  is  not 


15 

more  strongly  bound  under  the  Constitution  and  the  law  to  try  a  criminal 
than  is  the  military  to  try  an  offender  against  the  laws  of  war. 

The  fact  that  the  civil  courts  are  open  does  not  affect  the  right  of  the 
military  tribunal  to  hold  as  a  prisoner  and  to  try.  The  civil  courts  have 
no  more  right  to  prevent  the  military,  in  time,  of  war,  from  trying  an  of- 
fender against  the  laws  of  war  than  they  have  a  right  to  interfere  with 
and  prevent  a  battle.  A  battle  may  be  lawfully  fought  in  the  very  view 
and  presence  of  a  court ;  so  a  spy,  a  bandit,  or  other  offender  against  the 
law  of  war  may  be  tried,  and  tried  lawfully,  when  and  where  the  civil 
courts  are  open  and  transacting  the  usual  business. 

The  laws  of  war  authorize  human  life  to  be  taken  without  legal  process, 
or  that  legal  process  contemplated  by  those  provisions  in  the  Constitution 
that  are  relied  upon  to  show  that  military  judicial  tribunals  are  unconstitu- 
tional. Wars  should  be  prosecuted  justly  as  well  as  bravely.  One  enemy 
in  the  power  of  another,  whether  he  be  an  open  or  a  secret  one,  should  not 
be  punished  or  executed  without  trial.  If  the  question  be  one  concerning 
the  laws  of  Avar,  he  should  be  tried  by  those  engaged  in  the  war — they  and 
they  only  are  his  peers.  The  military  must  decide  whether  he  is  or  not 
an  active  participant  in  the  hostilities.  If  he  is  an  active  participant  in 
the  hostilities,  it  is  the  duty  of  the  military  to  take  him  a  prisoner  without 
warrant  or  other  judicial  process,  and  dispose  of  him  as  the  laws  of  war 
direct. 

It  is  curious  to  see  one  and  the  same  mind  justify  the  killing  of  thousands 
in  battle  because  it  is  done  according  to  the  laws  of  war,  and  yet  condemn- 
ing that  same  law  when,  out  of  regard  for  justice  and  with  the  hope  of 
saving  life,  it  orders  a  military  trial  before  the  enemy  are  killed.  The  love 
of  law,  of  justice,  and  the  wish  to  save  life  and  suffering,  should  impel  all 
good  men  in  time  of  war  to  uphold  and  sustain  the  existence  and  action  of 
such  tribunals.  The  object  of  such  tribunals  is  obviously  intended  to  save 
life,  and  when  their  jurisdiction  is  confined  to  offences  against  the  laws  of 
war,  that  is  their  effect.  They  prevent  indiscriminate  slaughter  ;  they  pre- 
vent men  from  being  punished  or  killed  upon  mere  suspicion. 

The  law  of  nations,  which  is  the  result  of  the  experience  and  wisdom  of 
ages,  has  decided  that  jay  hawkers,  banditti,  &c.,  are  offenders  against  the 
laws  of  nature,  and  of  war,  and  as  such  amenable  to  the  military.  Our 
Constitution  has  made  those  laws  a  part  of  the  law  of  the  land.  Obedience 
to  the  Constitution  and  the  law,  then,  requires  that  the  military  should  do 
their  whole  duty ;  they  must  not  only  meet  and  fight  the  enemies  of  the 
country  in  open  battle,  but  they  must  kill  or  take  the  secret  enemies  of  the 
country,  and  try  and  execute  them  according  to  the  laws  of  war.  The 
civil  tribunals  of  the  country  cannot  rightfully  interfere  with  the  military 
in  the  performance  of  their  high,  arduous,  and  perilous,  but  lawful  duties. 
That  Booth  and  his  associates  were  secret  active  public  enemies,  no  mind 
that  contemplates  the  facts  can  doubt.  The  exclamation  used  by  him  when 


16 

he  escaped  from  the  box  on  to  the  stage,  after  lie  had  fired  the  fatal  shot, 
sic  semper  tyrannis,  and  his  dying  message,  "  say  to  my  mother  that  I  died 
for  my  country,"  show  that  he  was  not  an  assassin  from  private  malice, 
hut  that  he  acted  as  a  public  foe.  Such  a  deed  is  expressly  laid  down  by 
Vattel,  in  his  work  on  the  law  of  nations,  as  an  offence  against  the  laws  of 
war,  and  a  great  crime.  "  I  give,  then,  the  name  of  assassination  to  a 
treacherous  murder,  whether  the  perpetrators  of  the  deed  be  the  subjects 
of  the  party  whom  we  cause  to  be  assassinated  or  of  our  own  sovereign,  or 
that  it  be  executed  by  any  other  emissary  introducing  himself  as  a  suppli- 
ant, a  refugee,  or  a  deserter,  or,  in  fine,  as  a  stranger."  (Vattel,  339.) 

Neither  the  civil  nor  the  military  department  of  the  government  should 
regard  itself  as  wiser  and  better  than  the  Constitution  and  the  laws  that 
exist  under  or  are  made  in  pursuance  thereof.  Each  department  should,  in 
peace  and  in  war,  confining  itself  to  its  own  proper  sphere  of  action, 
diligently  and  fearlessly  perform  its  legitimate  functions,  and  in  the  mode 
prescribed  by  the  Constitution  and  the  law.  Such  obedience  to  and  ob- 
servance of  law  will  maintain  peace  when  it  exists,  and  will  soonest  relieve 
the  country  from  the  abnormal  state  of  war. 

My  conclusion,  therefore,  is,  that  if  the  persons  who  are  charged  with 
the  assassination  of  the  President  committed  the  deed  as  public  enemies,  as 
I  believe  they  did,  and  whether  they  did  or  not  is  a  question  to  be  decided 
by  the  tribunal  before  which  they  are  tried,  they  not  only  can,  but  ought 
to  be  tried  before  a  military  tribunal.  If  the  persons  charged  have  offended 
against  the  laws  of  war,  it  would  be  as  palpably  wrong  for  the  military  to 
hand  them  over  to  the  civil  courts,  as  it  would  be  wrong  in  a  civil  court  to 
convict  a  man  of  murder  Avho  had,  in  time  of  war,  killed  another  in  battle. 
I  am,  sir,  most  respectfully,  your  obedient  servant, 

JAMES  SPEED,  Attorney  General. 

To  the  PRESIDENT. 


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